Court: America Can Seek Death Penalty for 9/11 Defendant
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – An appeals court ruled yesterday that the government can seek to execute Zacarias Moussaoui if he is convicted on terror charges, but said he must be given fair access to Al Qaeda witness statements that might support his defense.
Mr. Moussaoui, the only U.S. defendant charged with crimes related to the September 11 attacks, contends he had no role in planning the hijackings, and at least three high Al Qaeda officials in custody can reinforce that claim.
In affirming a lower court ruling, the three-judge panel found “that the enemy combatant witnesses could provide material, favorable testimony on Mr. Moussaoui’s behalf.”
But the panel said the lower-court’s remedy of removing the death penalty was not the proper way to penalize the government for refusing to grant Mr. Moussaoui adequate access to the witness statements.
Rather, the court said, the solution should have been for the defense, the prosecution, and the judge to decide, for presentation to a jury, statements that would support Mr. Moussaoui. The defense must have a major role in crafting a compromise, the court said.
In reaffirming the death penalty, the 4th U.S. Circuit Court of Appeals, located in Richmond, Va., said “no punitive sanction is warranted” by the government’s attempt to protect national security by limiting defense access to witness statements.
U.S. District Judge Leonie Brinkema, in Alexandria, Va., had barred any September 11-related evidence, but the appeals court also threw out that ruling. Two of the Al Qaeda witnesses are top planners of the September 11, 2001, attacks: Ramzi Binalshibh and Khalid Shaikh Mohammed. The opinion identifies the three witnesses as A, B, and C.
Each of the witnesses has made statements to interrogators that would support Mr. Moussaoui, and one would undermine a possible government theory that Mr. Moussaoui was to have flown a plane into the White House on September 11, the court said.
Witness A’s statements are “consistent with Mr. Moussaoui’s claim that he was to be part of a post-September 11 operation,” the court said.
Frank Dunham Jr., the federal public defender representing Mr. Moussaoui, declined to comment on the ruling.
Attorney General Ashcroft called the ruling a victory for the government, saying it “once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests.”
The court said crafting witness statements for the jury must be “an interactive process” among the trial judge, Brinkema, Mr. Moussaoui’s lawyers, and prosecutors.
A section of the ruling was entitled “submission of questions by Mr. Moussaoui,” but the portion that explained what that meant was blacked out.